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It was no doubt very irritating to the anti-proprietary party that acts upon which they had expended time and thought should be continually repealed by the Crown upon pretexts that probably concealed the true motives for such action. The assembly had, however, hit upon a method of preserving its legislation, temporarily at least. Under the charter, all laws were required to be submitted to the council within five years of their enactment. The colonists took as much time as they pleased before submitting the acts, and, as a result, the laws generally remained in force nearly five years, and when the assembly was notified of their repeal, new acts on similar lines were passed. Against such tactics the commissioners of trade vainly protested. During the intervals between the repeal of the old and the passage of the new court acts the governor maintained the courts either by special commissions to the judges or by general ordinances.
One act did succeed in obtaining favorable recommendation, that of March 27, 1712–13, relating to the organization of and powers of orphans' courts, a comprehensive statute which defined the duties of that court in relation to the estates of decedents, and the care of the estates of minors, and became the basis of all subsequent legislation extending and strengthening the jurisdiction of that admirable tribunal.
It would take up too much space to go over all the acts that fell before the criticisms of the council. One, that of May 15, 1715;regulated the taking of appeals to Great Britain and required the appellant to give recognizance in double the amount of the judgment. The
* II Statutes at Large, 554; III Statutes at Large, 441, 467. On the other hand, Penn complained of the expense to which he was put in endeavoring to have the acts approved by the crown officers.
2 III Statutes at Large, 32, 440, 466.
objection to this act was that there was no sum limited for which an appeal might be brought, as provided in the instructions to the governors of all the plantations, but notice of this repeal does not seem to have reached Pennsylvania, and the act was printed as in force in all compilations of the laws down to the Revolution. The first definite reference to these appeals is, as we have seen, in the commission of William and Mary to Governor Fletcher, which limited appeals to cases involving more than three hundred pounds. Additional instructions were sent to the proprietors in 1726,1 directing the suspension of execution pending the final determination of appeals, and in 1753 still more explicit instructions were issued to a number of colonies including Pennsylvania. By these instructions the governor and council were directed to hear appeals from the courts and if any of the judges who tried the case appealed were members of the council they were not to vote but to give the reasons for their decision. From the judgment of the provincial council an appeal was to be allowed to the king in council provided the matter in controversy involved five hundred pounds, and in cases of less than that amount where future rights might be bound or the king's revenue affected. The appellant was required to enter security for the judgment and costs and pending the appeal execution was to be suspended, unless security was entered for restitution.?
Charter and Laws of Pennsylvania, 395; I Pennsylvania Archives (1st Series), 196.
2 II Pennsylvania Archives (1st Series), 107, see also, VIII New Jersey Archives (1st Series) 190. For appeals in other colonies, see Winthrop v. Lechmere, 1 Thayer's Cases on Constitutional Law, 34; VII Connecticut Colonial Records, 571 (1727); Frost v. Leighton (Mass. 1738), II American Historical Review, 229; Perry v. Randolph, Barradal's Reports, 2 Virginia Colonial Decisions, 22 (1726). In the introduction to Volume II of Acts of the Privy Council of England, Colonial Series (1910),
The directions for a judicial hearing before the provincial council must have been given in ignorance of the fact that under the Frame of Government of 1701 the council in Pennsylvania did not exercise judicial powers.
In 1718 two murderers, Hugh Pugh and Lazarus Thomas, attempted to gain a reprieve by an appeal to the king, but the council ignored their petition on account of the notoriety of their crimes. The case of Fothergill v. Stover, involving the admissibility in evidence of a letter from the secretary of the land office to a deputy surveyor, is said by the reporter to have been affirmed on appeal to the king, and the docket of the supreme court shows that such an appeal was taken.3 In fact there are several entries of this sort. In Brown v. McMurtrie, April Term, 1763, judgment is entered for the plaintiff on a special verdict, whereupon Mr. Galloway “prays leave to appeal to the King in Council,” which is granted on giving security agreeable to the act of assembly and paying the costs. Below in another handwriting is the entry, “Judgment of the Supream Court confirmed by his Majesty in Council."4 There is a similar entry in Nixon v. Long, where Chew and Galloway appeared for the plaintiff and Dickinson and Ross for the defendant. Judgment for the plaintiff was entered on a demurrer to the evidence and on appeal to the king the judgment was confirmed.”'5 There are two other entries of appeals in 1765, and at April Term, 1767, there are three suits by the same plaintiff against different defendants, in which appeals to the king were taken, security entered and transcripts of the record issued, but the result is not recorded.?
will be found an interesting account of the practice of the council on appeal, while in the text are numerous examples of appeals from the West India Islands as well as from the colonies on the American Continent between 1680 and 1720.
1 III Colonial Records, 30, May 8, 1718.
It is interesting to note, that to the appeals from the various colonies and from the Channel Islands is to be traced the jurisdiction of the judicial committee of the privy council. The standing committee for trade and plantations was, by an order of 1691, directed to hear appeals and report thereon to the king in council. Few cases came before the committee at first, but gradually their proceedings took a judicial form, the judgment of the members became a judicial decision, and the adoption of their report a pro forma matter. At this early period their decisions are but occasionally noticed in the English reports, but Lord Mansfield, in his speech on the Stamp Act, stated that he had in his early practice been much concerned in the plantation causes before the privy council and so had become acquainted with American affairs. 3
The attempted appeal of Pugh and Thomas was based on the fact that seventeen of the grand jury which had indicted them and eight of the petit jury who found them guilty were Quakers who had qualified by affirmations instead of oaths. This calls attention to a difficulty that had long troubled the colony. The conscientious scruples of the Friends against judicial oaths had
1 Swift v. Hawkins, Lightfoot and Jones, Docket No. 4, page 591.
2 Finlason's History of the Judicial Committee of the Privy Council, 39; V Pennsylvania Archives (2d Series), 436, 658. While there was a standing committee for hearing appeals, these petitions seem to have been frequently referred to special committees. The present judicial committee dates from the Act of 3 & 4 William IV, chapter 41.
3 Mansfield's speech on the Stamp Act, reprinted in Library of Original Sources, Vol. VII, 84.
been taken advantage of by their opponents, led by Colonel Quarry, to drive them from office and lessen their power. An order had been procured from Queen Anne enjoining the administration of oaths to all persons willing to take them, an order which the Quaker justices were loath to enforce, while the justices of the church party declined to administer affirmations, lest they should mistake the sincerity of the affiant's religious scruples. Constant friction and mistrials resulted from this state of affairs, and more than one act was passed on the subject only to meet with technical objections in England.2
The popularity of Governor Keith enabled him to obtain the passage of the Act of May 31, 1718,3 which permitted affirmations by such as conscientiously scrupled to take an oath, but at the same time restored much of the rigorous criminal code of England, which the humanity of Penn had prevented from being put in force in the province. A few years later the Act of May 9, 1724,4 was passed which carefully prescribed the forms of declarations of fidelity, abjurations and affirmations to be taken by Quakers, with a proviso that the act was not to be construed as repealing the Act of 1718. To this the assembly in 1739 attempted to add a supplement for the relief of Scotch Presbyterians, who had conscientious scruples against kissing the Bible, permitting them to take the oath in the form commonly administered in Scotland. Approval of this act was refused on the advice of Sir Dudley Ryder and Sir John Strange, who criticised its loose wording and called attention to the danger of giving way to new
1 II Colonial Records, 38, 17, 3 mo. 1703.
2 Shepherd's Proprietary Government in Pennsylvania, chapter VII, 351.
3 III Statutes at Large, 199; III Colonial Records, 63. 4 III Statutes at Large, 427.